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A U.S. District Court Judge today ruled that the U.S. State Department exceeded its authority under the Passport Act of 1926 when it denied a passport to Lambda Legal client Dana Zzyym, a U.S. Navy veteran who is intersex and non-binary, and does not identify as male or female.

The State Department denied Dana’s passport application because Dana could not accurately choose either male or female on the passport application form, and the form does not provide any other gender marker designation.

This is the second time Zzyym has won against the U.S. State Department for denying them a passport. In November, 2016, the same district court found the State Department had violated the federal Administrative Procedure Act and ordered the department to reconsider its binary-only gender policy.

The State Department doubled-down on its discriminatory male-or-female-only policy to deny Zzyym a passport, leading to today’s ruling.

“It is well past time for Dana Zzyym and other non-binary citizens of this country to be recognized and respected for who they are, to live openly and authentically, and to be able simply to travel freely about the world,” Lambda Legal Senior Attorney Paul D. Castillo said.

“Dana is intersex, and identifies as intersex and non-binary, but the U.S. Passport application did not allow them to identify themselves accurately. In light of this ruling, we call on the State Department to promptly issue Dana this essential document that accurately reflects their gender.”

From the ruling:
“[T]aking the Department’s proffered rationales that I previously determined were inadequate with the new evidence in the administrative record regarding the growing body of jurisdictions that allow for a non-binary gender marker, I find that the Department failed to show that its decision-making process regarding the policy was rationale…The authority to issue passports and prescribe rules for the issuance of passports under [the Passport Act] does not include the authority to deny an applicant on grounds pertinent to basic identity[.]

“Recognizing the unreasonable delays Dana has faced in the issuance of a passport with an intersex marker, the Court enjoins the Department from relying upon its binary-only gender marker policy to withhold the requested passport from Dana.”

In its lawsuit filed in the U.S. District Court for the District of Colorado, Lambda Legal argued that the State Department is violating the Administrative Procedure Act and the due process and equal protection components of the Fifth Amendment to the U.S. Constitution by denying Dana the ability to travel freely, and by compelling Dana to lie about who they are on the passport application form.

Finding that all the reasons given by the State Department were not rational, the court avoided having to decide on constitutional grounds.

“It’s been nearly four years since the State Department first denied me a critical identity document that I need to do my job and advocate for the rights of intersex people both in the United States and abroad. The agency’s refusal to issue me a passport has already cost me opportunities in Mexico City and Amsterdam,” said Zzyym, who serves as associate director of the Intersex Campaign for Equality.

“I’m not going to lie on my passport application, I shouldn’t have to, and the judge here, twice, has agreed with me.”

“Last year, Oregon officials unanimously voted to allow state residents to select “X” as a gender marker for their drivers’ licenses and state IDs, and the District of Columbia, California, Washington, and Maine have followed suit. If they can do it, why can’t the U.S. State Department?”

Background

Dana Zzyym, who uses the gender-neutral pronouns “they,” “them” and “their,” was born with ambiguous sex characteristics. Shortly after Dana’s birth, their parents and doctor decided to raise them as a boy. As a result, Dana underwent several irreversible, painful and medically unnecessary surgeries that didn’t work, traumatized Dana and left them with severe scarring.

Many years later, after serving six years in the U.S. Navy and then attending Colorado State University, Dana began researching surgeries and came to understand they had been born intersex. Drawing on personal experience, they began educating the public about issues facing intersex and non-binary people.

Dana currently serves as associate director for Intersex Campaign for Equality (also known as the United States affiliate of the Organisation Intersex International (OII-USA)).

As part of their work, Dana was invited to attend the International Intersex Forum in Mexico City in October, 2014, at which time Dana applied for a U.S. passport. The application requires that the applicant select a gender marker of either ‘male’ or ‘female.’ It also requires first-time applicants to submit evidence of citizenship, such as a birth certificate, which in Dana’s case lists their sex as “unknown.” Notwithstanding the information on their birth certificate and the fact that Dana’s doctors with the U.S. Department of Veterans Affairs confirm their gender as intersex, Dana’s application for a passport was denied.

In October, 2015, Lambda Legal filed a lawsuit in the U.S. District Court for the District of Colorado, asserting that the U.S. State Department violated the due process and equal protection components of the Fifth Amendment to the U.S. Constitution, as well as the federal Administrative Procedure Act, by denying Dana a passport that accurately reflects their gender.

Most countries that offer a third marker in the sex field on passports use “X,” a gender marker option that is recognized by the International Civil Aviation Organization (ICAO), a United Nations agency that sets forth international travel document standards.

The Intersex Campaign for Equality and its Founding Director, Hida Viloria, played a critical role in bringing Dana’s case forward and in advising Lambda Legal on intersex and nonbinary issues. For more information, visit the Intersex Campaign for Equality.

Unfortunately, the types of painful and unnecessary surgeries that Dana underwent as a child are still performed in hospitals across the United States. For more information, visit here.

For more information about people who are intersex and the diversity of gender identities, visit here.